By way of background, before the entry into force of the “Macron scale”, in the case of unfair dismissal, it was for the judge in each case to set the amount of compensation for the loss suffered by the employee and the law did not set any maximum amount. This meant that judges were able to determine the amount of compensation with great latitude and without precise rules.
This lack of a cap on the level of compensation which could be awarded was clearly a source of uncertainty for employers and was perceived as discouraging recruitment, given the disparity in the amounts awarded by the different employment tribunals in France.
Since the entry into force of the Macron scale, on September 24, 2017, an employee is awarded compensation for unfair dismissal according to a scale setting both a minimum and a maximum level, depending on the seniority of the employee and ranging from one month to 20 months’ of salary.
However, the Macron scale has been contested by both employment tribunals and the appellate courts, which have refused to apply it, despite the fact that the scale has been validated by the Constitutional Court, an opinion of the Supreme Court and the Administrative Supreme Court. In particular, judges wanted to be able to apply this scale in concreto or based on evidence, allowing them to award compensation higher than the maximum of the scale if the employee’s situation and the loss suffered justified it.
In a decision dated May 11, 2022, the Supreme Court dismissed a judge’s in concreto review of an unfair dismissal award and so definitively validated the existence of the Macron scale.
This decision therefore preserves legal certainty for companies dismissing employees, enabling them to know at the time of dismissal the maximum level of compensation which may be awarded in the event of unfair dismissal. It should be noted, however, that employees may still try to claim grounds for nullity of the dismissal or claim additional amounts such as bonuses or in relation to working time to circumvent the maximum amount provided by the Macron scale.